Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Sarah E. Scherrer
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
February 7, 2001
We have jurisdiction over this direct appeal because the longest single sentence exceeds
50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule
The State charged Defendant with Felony Murder,
two counts of Burglary,
and with being a habitual offender.
A jury found Defendant guilty
on all counts, including finding him to be a habitual offender. The
trial court sentenced Defendant to a total of 105 years incarceration.
Defendant asserts that the State of Indiana failed to prove beyond a reasonable
doubt that Mr. Ledo returned to Mr. Osterholts home armed with a deadly
weapon with the intent to commit the offense of theft. Appellants Br.
at 16. We disagree.
The State presented evidence that during the second trip to the victims mobile
home Defendant and his companions took music CDs, a boom box, meat out
of the freezer, and a Sony Playstation among other things. According to
a witness for the State, Defendant also took a file box and a
safety deposit box. A reasonable jury could have concluded that Defendant intended
to commit theft when he broke into and entered the mobile home.
See Gee v. State, 526 N.E.2d 1152, 1154 (Ind.1988) (stating that a jury
can infer from the surrounding circumstances whether a defendant entered a structure with
the intent to commit the felony charged therein); Jewell v. State, 672 N.E.2d
417, 426-27 (Ind. Ct. App 1996) (holding that although the fact of breaking
and entering is not itself sufficient to prove entry was made with intent
to commit a felony, such intent may be inferred from subsequent conduct of
the defendant inside the premises), transfer denied.
Indianas Double Jeopardy Clause was intended to prevent the State from being able
to proceed against a person twice for the same criminal transgression.
v. State, 717 N.E.2d 32, 49 (Ind. 1999).
Eddy v. State, 496 N.E.2d 24 (Ind. 1986), for the proposition
that a crime that is continuous in its purpose and objective is deemed
to be a single uninterrupted transaction. Id. at 28.
Here, however, Defendant and his co-conspirators took the victims property during two separate
acts of burglary. After the first burglary, Defendant returned with a different
group of accomplices and broke and entered the victims mobile home for the
second time. In this particular case, the new accomplices and the lapse
of time establish that the second break-in was a separate act done with
a new and distinct intent to commit a felony.
The States evidence was sufficient to find Defendant guilty of Felony Murder.
The State presented evidence that Defendant and Fitzhugh broke into and entered the
victims mobile home and took items from it, and Fitzhugh testified that Defendant
tied the victims hands behind his back, pushed him onto the bed, and
ordered Fitzhugh to kill the victim. This amounts to substantial evidence of
probative value that Defendant and Fitzhugh killed the victim while committing burglary.
At minimum, a reasonable jury could infer that Defendant committed Felony Murder by
aiding, inducing, or causing Fitzhugh to kill the victim in the course of
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Footnote: Id. § 35-42-5-1.
Footnote: Id. § 35-43-2-1.
Footnote: Id. § 35-42-3-3.
Footnote: Id. § 35-50-2-8 (Supp. 1996).